R v Egan

[2008] NZCA 102

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/07
[2008] NZCA 102

THE QUEEN

v

SHANE PAUL EGAN

Hearing:15 April 2008

Court:Hammond, Williams and MacKenzie JJ

Counsel:P G Mabey QC for Appellant

M D Downs for Crown

Judgment:28 April 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

The Offending

[1]       The appellant was the subject of a search warrant executed at his home in March 2006.  As a result of that search, he was charged with a number of counts involving possession of methamphetamine for supply, and related offences.  He was released on bail.  In July 2006 he was involved in a motor cycle accident in Mt Maunganui and was knocked unconscious.  Police attending the scene, and looking for identification in his belongings, found a quantity of methamphetamine and related items.  He faced a number of charges arising from that discovery.

[2]       The facts of the March offending were that in the appellant’s house, which was protected by security cameras, detectors and a radio scanner tuned to the police channel, police located 47 grams of methamphetamine, $25,330 in cash, and a number of point bags containing relatively small quantities of methamphetamine (less than 1 gram).  There was evidence in the garage of the extraction of pseudoephedrine, including equipment and chemicals used in the process.  Also located was 1,329 grams of Contac NT, capable of producing over 500 grams of pseudoephedrine hydrochloride, which in turn could have produced between 265 and 398 grams of methamphetamine.  The statement of facts also referred to the location of four firearms and ammunition in the same briefcase as the Contac NT.  The July incident involved the finding in the appellant’s backpack of 37.6 grams of methamphetamine, $25,300 in cash, electronic scales, and tabs of LSD.  Later a further $920 cash was found in the appellant’s clothes. 

[3]       The appellant came to trial first on the charges arising from the July discovery.  For that offending he faced one charge of possession of methamphetamine for supply (on which he was convicted following jury trial), one charge of possession of lysergide, and one charge of possession of utensils, namely a methamphetamine pipe (to both of which counts he pleaded guilty at the start of the trial).  He was sentenced by Andrews J in July 2007.  For the March offending, the appellant pleaded guilty to one count of producing and one count of possession of the pre-cursor substance pseudoephedrine, one count of possession of methamphetamine for supply and one count of supply of methamphetamine.  He was sentenced by Ronald Young J on 18 September 2007: HC HAM CRI-2006-019-1753.  This appeal is against the latter sentence.

The Sentencings

[4]       Andrews J, in sentencing for the July offending, took a starting point on the charge of possession for supply of three years six months imprisonment, which she increased to three years and nine months to take account of the fact that the appellant was on bail at the time.  She made no adjustment to that starting point and so imposed a sentence of three years and nine months on the charge of possession for supply, with concurrent sentences on the other charges. 

[5]       Ronald Young J, in sentencing for the March offending, adopted a starting point of about five and a half to six years in respect of the methamphetamine charges, and added a further two years to reflect the large amount of pseudoephedrine.  He imposed a further uplift of six months to reflect the appellant’s previous drug dealing, giving a starting sentence in the region of eight to eight and a half years before mitigating factors and totality were considered.  He deducted 20 months for the guilty pleas, leaving six years and ten months from a start of eight and a half years.  He then considered whether the six years and ten months, plus the three years and nine months for the July offending – a total of ten years and seven months – was too long overall for this offending.  He reached the conclusion that that was on the high side and accordingly reduced the sentence to five years and three months, giving a total of nine years.  He imposed a minimum term of three years.

The Submissions

[6]       The appellant’s submission on this appeal is that the term of nine years to cover the March and July offending is manifestly excessive and is wholly out of proportion to the gravity of the overall offending.  Mr Mabey QC submits that the total quantity of methamphetamine was approximately 100 grams, which places the appellant in the middle of band two of R vFatu [2006] 2 NZLR 72 (CA). To that, he acknowledges that an uplift is appropriate to reflect the offending while on bail, the appellant’s previous convictions for cannabis offending, and the charges relating to the pseudoephedrine. He notes Ronald Young J’s reference to the large amounts of cash and further chemicals ready to produce methamphetamine and his comment that the total involved could easily have been over $300,000 worth of cash and drugs discovered in less than a calendar year, which brings the appellant into a high level of drug dealing. Mr Mabey submits that, if the whole of the pre-cursors had been converted to methamphetamine, and the cash was treated as the product of the sale of methamphetamine, then the total methamphetamine would have been of the order of 350 grams. He submits that this would place the appellant in band three of Fatu, which carries a range of eight to eleven years; if that were the case, an appropriate starting point might be say 10 years, increased to about 11 years to reflect the offending while on bail and the previous cannabis convictions.  A 20% reduction for a guilty plea would bring the end sentence back to approximately the nine years which was imposed here.  The significant difference, in his submission, is that this analysis reflects the total possible yield of methamphetamine, so that to reach the same starting point by having regard to the pre-cursor substance involves sentencing the appellant for potential further offending, rather than for his actual offending; that the difference between the pseudoephedrine, and the methamphetamine which that pseudoephedrine might produce, is reflected in the different maximum penalties and that that difference is not reflected in the sentence imposed here. 

[7]       Mr Mabey places considerable reliance upon a comparison between the facts of this case and R v Anslow HC AK CRI 2003-004-040867 20 May 2005.  In that case a sentence of nine years was confirmed on appeal, where there were two arrests, involving in total 10 grams of methamphetamine, and sales assessed from a tick list at 220 grams.  There was an aggravating feature, offending on bail, and no mitigating factors.  He submits that Mr Anslow’s offending was more culpable than that of the appellant by a considerable margin.  Mr Mabey also refers to R v Messina (Aka Wellington) HC AK CRI-2006-004-012765, CRI-2006-004-008243 15 December 2006, where a sentence of four years and two months was imposed after guilty pleas for a first arrest involving 13.3 grams of methamphetamine and approximately $47,000 cash, and a second arrest two months later with 5.3 grams of methamphetamine and approximately $10,000 cash.  Mr Mabey acknowledges that the appellant’s offending exceeds that of Messina, but submits that on a comparative basis, the appropriate sentence should be in the range of six to seven years.  He also refers to R v Torvald HC AK CRI-2005-092-014606 13 October 2006, a case involving 122 grams of methamphetamine, $7,500 cash, and the aggravating feature of a loaded pistol and knives.  Allowing a six month reduction for personal circumstances, a term of seven years was imposed.  Mr Mabey acknowledges that the appellant has the additional factors of offending on bail and the pseudoephedrine charges.  He submits that those are balanced by the seriously aggravating weapons charges and that the start point of seven and a half years should equate to that for the appellant here, allowance then being given for the appellant’s guilty plea.  He also refers to R v Cooney HC AK CRI-2005-92-12812 26 May 2006, where there was a first arrest involving 7.66 grams and a tick list indicating sales of approximately 26 grams, and an arrest a month later with 15 grams, approximately $1,700 cash, point bags, scales, and a loaded air pistol.  A starting point of six years was taken, heavily influenced by the presence of the firearm and repeat offending.  That was increased by two years for previous convictions (including two terms of imprisonment for possession of methamphetamine for supply) and a reduction of two years for guilty pleas. Mr Mabey submits that those cases indicate that the appropriate sentence for the appellant should be in the range of six to seven years.

[8]       Mr Downs for the Crown submits that the function of an appellate court is to scrutinise whether the sentence imposed properly reflects the overall criminality of both the offending and the offender, rather than to second guess the methodology employed in constructing that sentence.  He submits that the judge employed an entirely orthodox and transparent process in sentencing the appellant, and that the principal aggravating feature distinguishing the appellant from the cases on which Mr Mabey relies was the appellant’s successful extraction of pseudoephedrine which clearly was an ongoing undertaking.  He notes that, as this court stated in R v Townsend CA141/05 30 March 2006 at [26], the extraction of pseudoephedrine is the first step in the manufacture of methamphetamine and as such can support a charge of attempted manufacture of methamphetamine.  As to the appropriate tariff for the extraction of pseudoephedrine, Mr Downs notes the decision of this Court in R v Burnside [2007] NZCA 527 concerning the categorisation of offending involving the importation of pseudoephedrine. He submits, applying by analogy the principle in Fatu, that those who manufacture methamphetamine are more blameworthy than importers of the drug, and that those who extract pseudoephedrine from imported class C medication ought to be treated as at least equally culpable with those who import the pre-cursor substance.  He accordingly submits that the appellant’s pseudoephedrine offending on its own could have attracted a starting point in the range of four and a half to five years.  As to the cases relied upon by Mr Mabey, Mr Downs submits that there is limited benefit in closely scrutinising earlier decisions, as each case turns on its own facts, and that the end sentence, having regard to the totality principle, is not manifestly excessive.

Discussion

[9]       The sentencing exercise in this case was, as Ronald Young J acknowledged, one of some complexity.  The offending in both March and July, though dealt with on separate occasions, was so closely related that consideration of the totality principle reflected in s 85 of the Sentencing Act 2002 was required.  The essential question on this appeal must be whether the total of nine years imposed in respect of all the offending was manifestly excessive.  The methodology by which that total sentence was reached necessarily reflected the two stage sentencing process which occurred here.  We consider that the preferred approach on this appeal is to consider whether the end sentence is manifestly excessive, by considering what might have been appropriate if the sentencing exercise had been undertaken in one stage. 

[10]     The total amount of methamphetamine involved was 100 grams.  That would fall in about the middle of band two in Fatu, justifying a starting point of approximately five to six years.  Uplifts to that starting point would be required for a number of matters:

(a)Offending while on bail:  In drug dealing cases, offending while on bail is a significant aggravating factor.  Drug dealing is an ongoing activity.  The fact that an offender will continue that activity, even after apprehension, requires  significant recognition by way of denunciation and deterrence.  We consider than an uplift of as much as 18 months to two years could be justified.

(b)Pseudoephedrine offending: The presence of the pseudoephedrine indicates an involvement with the manufacture of methamphetamine.  While the appellant did not face any charges relating to manufacture of methamphetamine, the uplift required for the pseudoephedrine offending must reflect that factor.  Ronald Young J added a further two years.  We consider that this was well within the permissible range.

(c)Previous offending: The appellant has a number of previous convictions for cannabis offending.  That also justified an uplift.  Ronald Young J considered that, at a minimum, a further uplift of six months was justified.  That too was well within the available range.

(d)Presence of firearms: The indictment that the appellant originally faced included five counts of possession of two pistols, two revolvers and some ammunition.  Those counts were not pursued, and Ronald Young J placed no express reliance upon the presence of the firearms.  The summary of facts referred to police having located four firearms and ammunition, and that was a circumstance which could properly be taken into account as an aggravating feature of the offending.  The presence of firearms is a seriously aggravating factor in cases of drug dealing.  An uplift of the order of one year would have been justified.

[11]     The potential range which arises from applying all of these factors is 10 to 11 and a half years. 

[12]     The only mitigating factor requiring a downward adjustment of the starting point is the plea of guilty to the March offending.  The assessment of the credit to be attributed to that guilty plea is significantly diminished by two factors.  First, the plea was to only part of the total offending to which the sentencing relates.  Second, the evidence against the appellant on the charges to which he did plead guilty was overwhelming, and the plea involved the dropping of significant other counts, including the firearm counts.  For these reasons, the credit to be accorded to the guilty plea is a limited one.  A credit in the range of one to two years would have been all that the appellant could reasonably expect. 

[13]     That analysis leads to the conclusion that the nine years which Ronald Young J fixed was well within the available range.  We do not accept Mr Mabey’s submission that the total sentence imposed would be justified only if the potential of the pseudoephedrine was treated as realised.  The sentence properly reflects the actuality of the pseudoephedrine offending, and its contribution to the totality of the offending.

Result

[14]     For these reasons, we are of the view that the sentence imposed was not manifestly excessive, and the appeal must be dismissed.

Solicitors:

Crown Law Office, Wellington